In The Era Of NIL, Barriers and Loopholes Create Confusion For International Athletes

This article originally appeared in the Spring 2023 issue of SwimSwam magazine. Subscribe here.

Nearly two years after the NCAA allowed college athletes to profit off their name, image, and likeness (NIL), there’s still confusion about how — and where — international athletes can benefit.

F-1 visa guidelines prevent international students from NIL-related work while on U.S. soil, but experts say there’s a loophole that permits them to make money outside the country.

That means that Leon Marchand, the most dominant collegiate swimmer in the nation, can’t capitalize on his growing fame while training at Arizona State. But when he returns home to France next summer for the Paris 2024 Olympics, he’ll be free to do as many sponsorship deals as he wants.

The other way around F-1 visa guidelines is ensuring any income is passive and not active. International athletes can participate in group licensing deals where a third party handles marketing duties, but they could risk losing their visa if they actively promote products on their social media accounts while on U.S. soil. It’s similar to how international students can receive passive income on rental property, but if they start sweeping the floors or acting as a building manager, that income becomes active and in violation of F-1 visa regulations.

“I tell international students, when we launch your shirt or product, I do not want you to go on social media and promote it,” said Keith Miller, vice president of compliance at Influxer, an agency that helps facilitate NIL deals with international athletes. “That would be active. If you’re in the United States and you’re jumping on one of those social media platforms, that could be seen as active.”

Influxer made national headlines for organizing photo shoots with international athletes during a basketball tournament in the Bahamas last November, collecting content that could potentially be used for later NIL deals.

“You’re instead going to have to rely on your friends and family and teammates — and, ultimately, a company like us — to promote it for you,” Miller said. “You just need to sit back and passively let happen what is supposed to happen.”

Most compliance departments are advising their international athletes against doing any NIL deals out of an abundance of caution, but that hasn’t stopped swimmers from exploring their options anyway.

“I read it from other student-athletes, how, basically, if you’re making money not on U.S. soil, it’s fine,” NC State senior Nyls Korstanje said. “So, if you take a plane to Canada and take a picture there, post it there, fly back, that is legal. It’s so frickin’ stupid, to be honest. Like are you kidding me? I think right now we’re just waiting for the legislators to change something in the visa status, because it is just the dumbest thing.”

Korstanje was recently in discussions for a “pretty good deal” with a finance app called MoneyLion, but when the company heard he was from the Netherlands, it pulled out of the deal because it didn’t want to risk his visa getting terminated.

“As an international from the Netherlands, Dutch companies aren’t as interested in me because I’m in America,” Korstanje said. “And American companies aren’t as interested in me because I’m an international.

“Right now, it’s just a very unclear situation for everyone — that’s what it boils down to,” he added. “A lot of people are just going for it. Just like, ‘F— it, I’ll get my visa terminated.’ But other people are too cautious for that and scared because technically you could lose your visa status.”

Sports writer Matt Brown has become one of the foremost experts on NIL while covering the off-the-field forces shaping the NCAA for his Extra Points newsletter. He told SwimSwam that part of the reason universities tend to be so careful is that most collegiate swimmers are not marketable enough to make the risk worth the reward.

“There’s not a ton of collegiate swimmers who have gigantic social media followings,” Brown said. “Their ability to really lucratively hit the camp circuit is often complicated by the fact that they’re competing against their assistant coaches who need that money, too. So, a school isn’t willing to tempt border patrol over a $400 deal, whereas somebody like a Kentucky basketball player — where the amount of money is hundreds of thousands of dollars — that warrants the billable hours to try to find another solution. That’s not to say it’s impossible, but the risk-reward is not as robust for a swimmer.

“This is the kind of question where your risk calculus has to be different,” Brown added. “And it would be really important for a university to get legal opinions from individuals who specialize in immigration law, not NCAA bylaws. Because the risk factor of an NCAA violation happening for an NIL deal is virtually zero, but the consequences — even if the risks are low — of running afoul of federal immigration law are massive. That can mess up someone’s life for 20 years if they’re trying to come back and work in the United States — which is why most people are like, ‘It’s just not worth $400, man.’”

Of course, the federal government could easily clear up this confusion by offering guidance on the issue instead of relying on athletic compliance offices to be immigration law experts. Korstanje and Cal junior Bjorn Seeliger are among the chorus of voices calling for legislators to “level the playing field” when it comes to international athletes’ access to publicity rights.

“What I would consider interesting is an F-1 clause for international student-athletes that allows them to actively work (make active NIL deals) up to the cost of their education (tuition, housing, food),” Seeliger wrote. “This would level the playing field for students that might not have full scholarships by taking pressure off the families that have to pay for it.”

Connecticut senator Chris Murphy has advocated for a federal law opening the door for all college athletes to make NIL money, but his efforts have been unsuccessful thus far.

“There is something flat out wrong with an industry that makes billions of dollars a year while many of its athletes can’t afford to put food on the table or buy a plane ticket for their parents to see them perform,” Murphy said back in 2021. “At a minimum, all college athletes deserve the ability to use their own name, image, and likeness how they see fit, and that includes international athletes who shouldn’t need to worry about losing their visa status and ability to pursue higher education in this country to benefit as well.”

It’s understandable why an international NIL exception might not be at the top of the White House’s to-do list right now. But the issue does affect thousands of international athletes, including about 14,000 at the Division I level alone.

“With the cost of education being so high, it could open up a lot of opportunities,” Korstanje said. “It’s kind of weird how you can get financial aid from your parents and you can get money from the school, but you can’t get money from corporations or companies that want to sponsor you as an athlete. So, opening up that possibility for international student-athletes would just really come in clutch because it would give room for other ways to fund your college career.”